Jangi Vs. Musammat Sundar and anr. - Court Judgment

LegalCrystal Citation

legalcrystal.com/471486

Court

Allahabad

Decided On

May-18-1922

Judge

Stuart and; Kanhaiya Lal, JJ.

Reported in

70Ind.Cas.589

Appellant

Jangi

Respondent

Musammat Sundar and anr.

Excerpt:civil procedure code (act v of 1908), order xxxii, rules 3, 4 - guardian ad litem, refusal of, to act--court, duty of--decree without appointing another guardian, validity of. - .....was not a major but a minor. he asked that her brother budha, should be made her guardian ad litem. budha was appointed as guardian ad litem without his views on the subject being ascertained. the notice issued to him was not personally served. on the 9th march 1920 budha was appointed guardian ad litem. on the 13th march 1920 he appeared and stated that he did not wish to be guardian ad litem. the munsif refused to permit him to withdraw from the guardianship. budha refused to defend the suit. so the munsif decreed it ex parte. musammat sundar then sued through a man whom she calls her stepfather for a declaration that the decree of the 12th april 1920 which had been passed-against her ex parte was fraudulent, null and void, and not enforcible, and for a declaration that she was.....

Judgment:

1. The suit out of which this appeal arises has disclosed a rather extraordinary state of things. In 1920 a man called Jangiinstituted a suit against a woman called Musammat Sundar in the Court of Munsif of West Budaun, on the allegation that he was married to her, claiming restitution of conjugal rights. He first asserted that the woman was a major. It might have been expected that a man would be in a position to know at the out-set whether his own wife was a major or a minor. He subsequently however stated that Musammat Sundar was not a major but a minor. He asked that her brother Budha, should be made her guardian ad litem. Budha was appointed as guardian ad litem without his views on the subject being ascertained. The notice issued to him was not personally served. On the 9th March 1920 Budha was appointed guardian ad litem. On the 13th March 1920 he appeared and stated that he did not wish to be guardian ad litem. The Munsif refused to permit him to withdraw from the guardianship. Budha refused to defend the suit. So the Munsif decreed it ex parte. Musammat Sundar then sued through a man whom she calls her stepfather for a declaration that the decree of the 12th April 1920 which had been passed-against her ex parte was fraudulent, null and void, and not enforcible, and for a declaration that she was not the wife of Jangi. The Subordinate Judge took the view that he could not interfere because Budha had been legally appointed guardian ad litem and that he had no right to form a presumption that the Munsif was wrong in refusing to permit him to relinquish his guardianship. Budha was apparently legally appointed guardian ad litem but when he appeared in Court and stated that he would do nothing on behalf of the defendant and that he did not wish to remain her guardian ad litem, we consider that the action of the Munsif in not, permitting rum to withdraw from the guardianship and appointing somebody who would be ready to watch the interest of the minor defendant, cannot be justified. For that reason, and for that reason only, the decree passed against Musammat Sundar is not enforcible against her. It is impossible to take any other view. The District Judge rightly took the view that the decree was not enforcible but the District Judge unfortunately-decreed the whole relief prayed for. This included a declaration that Musammat Sundar was not the married wife of Jangi, a point upon which the District Judge refers to no materials on which he could express an opinion. We modify the decree as follows. The plaintiff is decreed a declaration that the decree No. 349 of 1920 passed by the Munsif of West Budaun on the 12th April 1920 against her has no effect. The rest of the relief claimed by her in Suit No. 72 of 1920 is dismissed. It will be open to Jangi to bring a fresh suit against Musammat Sundar for restitution of conjugal rights. In this he will have to establish that she is legally married to him and that she has refused to live with him without due cause before he can succeed. There has been no valid decision on the merits on either of these two points. The parties will bear their own costs of this appeal.